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Judge Pushes for Progress in Nez Perce Water Mediation by Jennifer Sandmann Times-News, May 22, 2002

... Issue tied to fish, dams

TWIN FALLS -- Idaho's water judge urged attorneys Tuesday to reach resolution in one of the most complex and central issues in the legal sorting of Snake River Basin water rights.

The dispute among water users over water rights claimed by the Nez Perce Tribe has been in mediation since late 1998 and was involved in negotiations for several years before that. Parties involved agree that it's time for progress.

"We need to work 24-7 to get this problem solved," Judge Roger Burdick said.

He spoke to attorneys assembled in his Snake River Basin Adjudication courtroom in Twin Falls, some listening in over speakerphone. The judge asked for an update on mediation progress, gave attorneys a pep talk, recognized their efforts so far, and offered his courtroom for discussions among parties following adjournment.

Attorneys agreed to bring their report before the judge July 2.

Snake River Basin Adjudication is the legal inventory of some 150,000 water rights in 38 of the state's 44 counties. The case can't be closed without resolution of the Nez Perce dispute, one of the big remaining issues.

"It's time to stop the prairie chicken dance," Burdick said.

He likened legal maneuvering among attorneys in general to the sage grouse mating dance that involves birds puffing up their feathers, dancing around and raising a lot of dust. It's time for good-faith leadership, not just from lawyers, but also from business and corporate interests, Burdick said.

Idahoans have been traumatized by the issue, the judge said.

"We don't need fear. We need vision, and we need courage from these individuals," he said.

The Nez Perce Tribe filed an instream claim for essentially all the water in the Snake River as it passes out of the state at Lewiston. Idaho Power Co., the state, irrigation districts and other water users challenged the tribe.

Former water Judge Barry Wood in 1999 ruled fishing rights did not entitle the Nez Perce to the water claims the tribe has sought -- claims opponents said could virtually dry up all irrigated agriculture within the Snake River Basin. The issue was appealed to the Idaho Supreme Court, which has yet to make its ruling.

The Nez Perce claims are inextricably linked to issues including dam breaching, flushing water downstream for the fish and relicensing of Idaho Power Co.'s hydroelectric operations on the river.

Litigation continues but the parties haven't abandoned mediation, yet. In 1998, mediator Francis McGovern of the Duke University Law School in North Carolina began working on the case. He has helped resolve more than 30 complex disputes elsewhere, including DDT toxic exposure litigation in Alabama. He also has worked with the United Nations Compensation Commission on claims arising from the Iraqi invasion of Kuwait.

McGovern told Burdick that 20 big issues remain to be resolved in the Nez Perce dispute and that a handful were deal-breakers. But McGovern said he thinks there is consensus that it's time to make decisions.

"We are now at a point where it's time to fish or cut bait, so to speak," agreed Peter Monson, an attorney with the U.S. Department of Justice working on behalf of tribal rights.

"We think a six-week period to allow this matter to be brought to closure is certainly appropriate," said Jim Tucker, a Twin Falls attorney representing Idaho Power.

The Nez Perce Indians signed a treaty with the United States in 1855 for fishing rights, but they never expected that the fish or the water in the Snake River would ever be taken away. To protect its fishing rights spelled out in that treaty, the tribe has filed 1,113 claims in the Snake River Basin Adjudication for a majority of the water in the Snake River.